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December 18, 1998

Mr. Neil Mosesson
25 West 43rd Street
New York, NY 10036

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Mr. Mosesson:

I have received your letters of November 17 and November 19, as well as the
correspondence relating to them. You have sought an advisory opinion concerning your
requests for records directed to the Office of the New York County District Attorney.

By way of background, you requested a variety of records pertaining to an
investigation that apparently resulted in a conviction. The receipt of your request was
acknowledged by Maureen O'Connor, an assistant district attorney who had been designated
as records access officer in connection with the request. She wrote that the records sought
had to be ordered from the Closed Cases Unit, and that "[o]nce this information is reviewed,
[she would] review it to determine your request." A second request, largely unrelated to the
first, was made on September 11.

Having received no further response to the initial request and no response of any kind
to the second, you appealed to Gary Galperin, the District Attorney's appeals officer, on
October 5. Mr. Galperin responded on October 7, indicating that receipt of the second
request had been acknowledged by means of a letter addressed to you on October 1 and that
"[b]oth Records Access Officers informed you that they need to obtain any relevant files in
order to determine your requests" and that "[t]heir search efforts are ongoing." He concluded
by stating that "no relief is available to you on this appeal" and that you could "expect to
receive determinations or at least updated reports from A.D.A O'Connor and A.D.A. Sittnick
by November 6, 1998." The most recent communication that you received was sent to you
by A.D.A. O'Connor on November 10, in which she wrote that "the closed cases unit is still
making efforts to locate the file" and that upon her receipt of the file, she would review them
to render a determination.

From my perspective, although the Office of the District Attorney acknowledged the
receipt of your requests, it did not fully comply with the requirements of the Freedom of
Information Law. In this regard, I offer the following comments.

As you are aware, §89(3) of the Freedom of Information Law provides in relevant
part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

It has been held that agency officials "did not conform to the mandates" of the
provision quoted above "when they did not...furnish a written acknowledgement of the receipt
of...requests along with a statement of the approximate date when action would be taken"
[Newton v. Police Department, 585 NYS2d 5, 8, 183 AD2d 621 (1992), emphasis added].
In the context of your correspondence, the acknowledgement of receipt of your first request
did not include an approximate date indicating when access would be granted or denied. The
second was not answered in a timely manner. Further, no determinations had been made as
of the date of your letter to this office.

In a case that described an experience similar to yours, the court cited §89(3) of the
Freedom of Information Law and wrote that:

"The acknowledgement letters in this proceeding neither
granted nor denied petitioner's request nor approximated a
determination date. Rather, the letters were open ended as to
time as they stated, ‘that a period of time would be required
to ascertain whether such documents do exist, and if they did,
whether they qualify for inspection.

"This court finds that respondent's actions and/or inactions
placed petitioner in a "Catch 22" position. The petitioner,
relying on the respondent's representation, anticipated a
determination to her request...this court finds that this
petitioner should not be penalized for respondent's failure to
comply with Public Officers Law §89 (3), especially when
petitioner was advised by respondent that a decision
concerning her application would be forthcoming.

It should also be noted that petitioner did not sit idle during
this period but rather made numerous efforts to obtain a
decision from respondent including the submission of a follow
up letter to the Records Access Officer and submission of
various requests for said records with the Department of
Transportation" (Bernstein v. City of New York, Supreme
Court, Supreme Court, New York County, November 7,
1990).

In Bernstein, the court determined that the agency "is estopped from asserting that this
proceeding is improper due to petitioner's failure to appeal the denial of access to records
within 30 days to the agency head, as provided in Public Officers Law, §89(4)(a)."

Based on the foregoing, I believe that your requests have been constructively denied
and that you may appeal the denials to Mr. Galperin pursuant to §89(4)(a). That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive or
governing body of the entity, or the person therefor designated
by such head, chief executive, or governing body, who shall
within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the
reason for further denial, or provide access to the record
sought."

Alternatively, based on the holding in Bernstein, it appears that you could seek judicial review
of the denials now. I suggest, however, that you appeal in an effort to avoid the time and cost
of litigation.

I note that when an agency indicates that it does not maintain or cannot locate a
record, an applicant for the record may seek a certification to that effect. Section 89(3) of
the Freedom of Information Law provides in part that, in such a situation, on request, an
agency "shall certify that it does not have possession of such record or that such record
cannot be found after diligent search." If you consider it worthwhile to do so, you could seek
such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof that
an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

Lastly, while I am unfamiliar with the contents of the records or the effects of their
disclosure, it is noted as a general matter that the Freedom of Information Law is based upon
a presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law. It is emphasized that the introductory
language of §87(2) refers to the authority to withhold "records or portions thereof" that fall
within the scope of the exceptions that follow. In my view, the phrase quoted in the
preceding sentence evidences a recognition on the part of the Legislature that a single record
or report, for example, might include portions that are available under the statute, as well as
portions that might justifiably be withheld. That being so, I believe that it also imposes an
obligation on an agency to review records sought, in their entirety, to determine which
portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals, the State's highest court, expressed its general view of the
intent of the Freedom of Information Law in a fairly recent decision, Gould v. New York City
Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested
material indeed qualifies for exemption' (Matter of Hanig v.
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106,
109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers
Law § 89[4][b]). As this Court has stated, '[o]nly where the
material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld'
(Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419
N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial
of access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the agency contended that complaint follow up reports, also known as "DD5's",
could be withheld in their entirety on the ground that they fall within the exception regarding
intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that
because the complaint follow-up reports contain factual data, the exemption does not justify
complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a
general principle that "blanket exemptions for particular types of documents are inimical to
FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies
and lower courts in determining rights of access and referred to several decisions it had
previously rendered, directing that:

"...to invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification'
for not disclosing requested documents (Matter of Fink v.
Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393
N.E.2d 463). If the court is unable to determine whether
withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all
nonexempt, appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490
N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons
v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d,
at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: Gary Galperin
Maureen O'Connor
Cynthia Sittnick